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38 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 414

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

INDIAN HEALTH SERVICE

OKLAHOMA CITY, OKLAHOMA

(Agency)

0-NG-1767

DECISION AND ORDER ON NEGOTIABILITY ISSUE

December 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of one proposal that would require the designation of at least two smoking areas in each Agency facility.

For the reasons discussed below, we find that the proposal is negotiable.

II. Background

In the fall of 1985, in response to the Agency's stated intention to implement a ban on smoking in all its health care facilities, the Union submitted bargaining proposals which, among other things, provided for adequately ventilated designated smoking areas. The Agency declared the proposals nonnegotiable, claiming they interfered with its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. The Agency subsequently implemented the smoking ban without reaching agreement with the Union, and the Union filed an unfair labor practice charge with the Authority over the alleged unilateral implementation of the ban. The Authority ultimately determined that the Union's proposals did not interfere with the Agency's right to determine the technology, methods and means of performing its work, and found that the Agency committed an unfair labor practice by refusing to bargain over them. Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma and Oklahoma Area Indian Health Service Council, National Federation of Federal Employees, 31 FLRA 498 (1988) (IHS), enforced sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989).

In October 1989, immediately following the court's enforcement of the Authority's decision in IHS, the Union submitted a bargaining proposal to the Agency, again calling for the designation of smoking areas. However, during the course of the litigation in IHS, the Department of Health and Human Services (HHS), of which the Agency is a component, issued a department-wide regulation banning smoking in all its facilities. Relying on this regulation, for which the Agency claimed a compelling need under section 7117(a)(2), the Agency again declared the Union's proposal for designated smoking areas to be nonnegotiable. This appeal followed that declaration.

The department-wide regulation that banned smoking in HHS facilities was the subject of the Authority's decision in National Treasury Employees Union Chapter 250 and Department of Health and Human Services, Family Support Administration, Washington, D.C., National Treasury Employees Union Chapter 229 and Department of Health and Human Services Headquarters Office, Washington, D.C., and National Treasury Employees Union Chapter 217 and the Department of Health and Human Services Region VII, Kansas City, Missouri, 33 FLRA 61 (1988) (Family Support Administration), enforced sub nom. Department of Health and Human Services, Family Support Administration, et al. v. FLRA, No. 88-1867 (D.C. Cir. Nov. 30, 1990) (HHS v. FLRA). At issue there, as here, were proposals for designated smoking areas that conflicted with the HHS smoking ban. The agency had declared them nonnegotiable on the grounds that the smoking ban was supported by a compelling need under section 7117(a)(2) of the Statute and that the proposals interfered with the agency's right to determine the methods and means of performing work under section 7106(b)(1). In that case, the Authority found that the agency had not demonstrated a compelling need for the smoking ban and that the proposals did not interfere with the agency's right to determine the methods and means of performing work. Id.

III. Proposal

Designated smoking areas, inside the buildings for employees Minimum of 2 Maximum of 4 per facility.

IV. Positions of the Parties

A. Agency

The Agency contends that its policy requiring the establishment of a smoke-free environment in all Agency-controlled building space is not subject to bargaining because it: (1) is based on an Agency rule or regulation for which a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11(a) of the Authority's Regulations; and (2) involves the methods and means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute.⁽¹⁾

The Agency maintains that the Union's proposal for the establishment of designated smoking areas within the Agency's buildings conflicts with the smoke-free policy. Further, the Agency contends that a compelling need exists for this smoke-free policy because the policy is essential to the accomplishment of its mission, and the proposal is, therefore, outside the duty to bargain under section 7117(a)(2) of the Statute.⁽²⁾

In this regard, the Agency emphasizes its mission of fostering research in, and educating the public about, the hazards of smoking. The Agency contends the smoking ban is necessary to establish its credibility when it attempts to convey to the public information concerning the significant health hazards associated with smoking.

Secondly, the Agency contends that the smoking ban has the tendency to accomplish or further matters directly and integrally related to HHS' smoking and health operations as a whole and, therefore, proposals that would conflict with the policy interfere with its right to determine the methods and means of performing its work under section 7106(b)(1) of the Statute. The Agency claims that its own workplace smoking ban furthers the accomplishment of its mission of informing the public of the hazards of smoking by serving as an example to others.⁽³⁾

After the parties had submitted their positions on the negotiability issue, the Agency filed a motion to stay these proceedings pending the decision of the court reviewing the Authority's decision in Family Support Administration. The Agency claims that that case concerns the same issues as are present here and that the court's decision will be dispositive of this case.

B. Union

The Union denies that there is a compelling need for the Agency's no-smoking regulation. The Union first notes that the Authority has determined that workplace smoking policies concern conditions of employment and that changes in these policies cannot be made unilaterally. The Union further contends that the Agency's claims that the absence of a smoking ban would diminish the Agency's ability to educate the public are speculative and unsupported by record evidence. The Union argues that a complete ban on smoking is not essential to the accomplishment of the Agency's mission because it is not the only way to accomplish that mission.

Second, the Union also contends that the proposal does not interfere with the Agency's right to determine the methods and means of performing work, relying on the Authority's decision in IHS.

Thirdly, the Union argues that even if the proposal is found to interfere with a management right under section 7106(a) or (b)(1) of the Statute, it is nonetheless negotiable as an appropriate arrangement under section 7106(b)(3).

Finally, the Union opposes the Agency's motion to stay the proceedings, noting that it originally requested negotiations on this issue in 1985, and that further delay would constitute an injustice to the Union.

V. Analysis and Conclusions

With respect to the Agency's request to stay proceedings, that request is now moot due to the issuance of HHS v. FLRA.

The issues and arguments raised by the Agency in this case were addressed by the Authority in Family Support Administration. There we found that the Agency had not demonstrated that a compelling need under section 7117(a)(2) of the Statute existed for its rule banning smoking department-wide. Family Support Administration, 33 FLRA at 66-68. See HHS v. FLRA, slip op. at 4-9. We also found that proposals calling for designated smoking areas in HHS-controlled buildings did not interfere with the agency's right to determine the methods and means of performing the agency's work under section 7106(b)(1). Family Support Administration, 33 FLRA at 69-70. Nothing in this case warrants a different result. Accordingly, for the reasons more fully stated in Family Support Administration, we find the Union's proposal to be within the Agency's obligation to bargain.

VI. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain on the Union's proposal.⁽⁴⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency contends that the latter argument refers to the methods and means of performing the Department's work, not that of the Indian Health Service and, therefore, that it is distinguishable from the argument rejected by the Authority in IHS.

2. ² Section 2424.11 of the Authority's Rules and Regulations specifies criteria for determining when there is a compelling need for an agency regulation. Section 2424.11(a), relied upon by the Agency, states that a compelling need exists where "[t]he rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of the functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government."

3. The arguments raised by the Agency in this case are identical to those raised by the agencies in Family Support Administration. For a more detailed discussion of these arguments, see Family Support Administration, 33 FLRA at 62-65.

4. In finding that this proposal is negotiable, we make no judgment as to its merits.

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